Pokey.Clyde:R.A.Danny: They would probably get you for destroying evidence.

They'd have to prove it, first.

I think it would be at least a little difficult. They only need reasonable suspicion and if the relevant storage on your device contains nothing but binary zeros or randomized gibberish, it would probably raise some eyebrows (providing someone knows what they are looking at). You would need a "wipe" algorithm that could overwrite incriminating data with older "legitimate" and non-incriminating data (like an old set of texts or pics for example) and do it seamlessly.

Let's say the cops arrest you. They find, on your person when they arrest you, documents or photos that incriminate you. I believe such can be used against you currently without a warrant (correct me if I'm wrong). They also find your house keys-but that doesn't mean they have the right to go to your house and unlock it and search it without a warrant.

Let's take those factors to a digital world. If they find a smart phone with incriminating documents or photos stored locally on the device, then they are fair game. But they can't use the phone to log into Gmail and download emails there without a warrant, even if the password (house keys) is stored on the phone.

Makes sense to me. But I ain't no lawyer, so who knows what the actual legal ruling will be.

Geotpf:Let's say the cops arrest you. They find, on your person when they arrest you, documents or photos that incriminate you. I believe such can be used against you currently without a warrant (correct me if I'm wrong). They also find your house keys-but that doesn't mean they have the right to go to your house and unlock it and search it without a warrant.

If the cops arrest you can they unlock a locked glove compartment? If you have a diary with a lock on it (assuming you get arrested in the 60's), can they break the lock and read through the diary?

mjbok:If the cops arrest you can they unlock a locked glove compartment? If you have a diary with a lock on it (assuming you get arrested in the 60's), can they break the lock and read through the diary?

Can they open the trunk of your car without a warrant (or your consent)?

mjbok:Geotpf: Let's say the cops arrest you. They find, on your person when they arrest you, documents or photos that incriminate you. I believe such can be used against you currently without a warrant (correct me if I'm wrong). They also find your house keys-but that doesn't mean they have the right to go to your house and unlock it and search it without a warrant.

If the cops arrest you can they unlock a locked glove compartment? If you have a diary with a lock on it (assuming you get arrested in the 60's), can they break the lock and read through the diary?

Beats me, although that's a decent analogy to a locked cell phone (mine would be for an unlocked one).

If the SCOTUS grants warrantless searches then the lock mechanism will quickly be circumvented. There are companies out there just waiting to sell hacking tools to LEOs. Why bother with a unlocking when they can just copy the contents of its memory to a diagnostic VM?

Prophet of Loss:If the SCOTUS grants warrantless searches then the lock mechanism will quickly be circumvented. There are companies out there just waiting to sell hacking tools to LEOs. Why bother with a unlocking when they can just copy the contents of its memory to a diagnostic VM?

Depends on whether or not a cell phone gets treated like papers found on somebody's person when arrested or their house. The cops have hacking tools to unlock houses (battering rams); they still need warrants.

MooseUpNorth:Can they open the trunk of your car without a warrant (or your consent)?

Yes, in a couple of cases. First, if the cops have probable cause to search the trunk, they can generally do so without a warrant. It's known as the motor vehicle exception. Courts have generally found that the fact that a vehicle is mobile is, in itself, exigency that allows an immediate search without a warrant. There are some exceptions to this though.

Secondly, if a cop is going to impound your car he can do an inventory search to document what is in the vehicle.

Better: Clearly verbalize your objections. "I do not consent to a search of my phone." If the contact is being recorded, you want it made clear that the search is not consensual.

That's acceptable. But saying "No sir, I do not want to show you what is on my phone" is not. I'm not even a lawyer and already I'm seeing how to spin that. Whatever you say, run it by a lawyer first. Your version sounds a lot more lawyer-y.

UberDave:I think it would be at least a little difficult. They only need reasonable suspicion and if the relevant storage on your device contains nothing but binary zeros or randomized gibberish, it would probably raise some eyebrows (providing someone knows what they are looking at). You would need a "wipe" algorithm that could overwrite incriminating data with older "legitimate" and non-incriminating data (like an old set of texts or pics for example) and do it seamlessly.

TrueCrypt already does something like this for USB drives and other encrypted media. Basically you have two passwords. One is for your personal files, the other is for files you don't mind people seeing. Of course an encryption expert can figure out the container file size is too large for the files being shown, but it works for a quick search by a cop/customs agent.

Better: Clearly verbalize your objections. "I do not consent to a search of my phone." If the contact is being recorded, you want it made clear that the search is not consensual.

I'm sorry, but the police only keep the recordings for 10 days so the officers can refresh their memory when they write their official. The true record anyway is what the officer writes in his report, and that states the defendant said "Look at whatever you want pigs, I don't care!" Now my good jurors, who do believe, a decorated office with 12 years of experience or our accused drug dealer? It pretty clear who has more reason to hide the truth to me...

CruiserTwelve:MooseUpNorth: Can they open the trunk of your car without a warrant (or your consent)?

Yes, in a couple of cases. First, if the cops have probable cause to search the trunk, they can generally do so without a warrant. It's known as the motor vehicle exception. Courts have generally found that the fact that a vehicle is mobile is, in itself, exigency that allows an immediate search without a warrant. There are some exceptions to this though.

Secondly, if a cop is going to impound your car he can do an inventory search to document what is in the vehicle.

In your first case though - as you yourself mentioned - they still need probable cause.

wingnut396:I'm sorry, but the police only keep the recordings for 10 days so the officers can refresh their memory when they write their official. The true record anyway is what the officer writes in his report, and that states the defendant said "Look at whatever you want pigs, I don't care!" Now my good jurors, who do believe, a decorated office with 12 years of experience or our accused drug dealer? It pretty clear who has more reason to hide the truth to me...

Cops can't keep a recording for only 10 days. If they record something, it becomes evidence and has to be retained until the court case is resolved. By the way, what would be the point of using the recording when they write their report if they're just going to lie anyway?

If you're that concerned about being unlawfully searched by the cops, maybe you should carry your own recording device at all times. Or maybe wire your car with a hidden recording device.

The reasonableness of "seizure" is clearly accepted, when it is resulting from arrest. When you are arrested (not detained, questioned, etc. but straight up arrested) the police seize your person and the stuff you have on/with you. The reasonableness of "search" is what we're looking at. If you had a diary in your pocket, or a personal organizer, they could reasonably read through that along with checking your pocket or wallet for receipts, business cards, etc. The reasonableness of looking through the contents of an unlocked mobile phone is under current law pretty much the same. You'd have to specifically call out mobile phones/cameras/ipods etc.as a special type of protected item in a change to your state's laws if you wanted to change that. That leaves us only with the reasonableness of searching through a locked device. Either by demanding that the arrestee unlock it or by using a bypass tool of some kind.

Angela Lansbury's Merkin:UberDave: I think it would be at least a little difficult. They only need reasonable suspicion and if the relevant storage on your device contains nothing but binary zeros or randomized gibberish, it would probably raise some eyebrows (providing someone knows what they are looking at). You would need a "wipe" algorithm that could overwrite incriminating data with older "legitimate" and non-incriminating data (like an old set of texts or pics for example) and do it seamlessly.

TrueCrypt already does something like this for USB drives and other encrypted media. Basically you have two passwords. One is for your personal files, the other is for files you don't mind people seeing. Of course an encryption expert can figure out the container file size is too large for the files being shown, but it works for a quick search by a cop/customs agent.

No. The container size is the container size and is not useful information and, in theory, the data that remains encrypted is indistinguishable from random without the appropriate key, so that would be like saying, "There's only 2 word docs on this 16gb flash drive - WHERE'S THE REST?" when the rest of it is, in fact, empty. Even a TC file set up without the plausible deniability feature is going to have a fixed size and, storage being cheap, most people are going to set it to be substantially larger than they strictly need it to be.

That's not to say that TC's plausible deniability is bulletproof or anything - just that your notion of what would give it away is completely wrong.

mongbiohazard:In your first case though - as you yourself mentioned - they still need probable cause.

Correct. A search must be done with probable cause. The exception to this is consent. A cop can ask for your consent without any reason whatsoever. If you provide consent, you're waiving your fourth amendment rights.

Without consent the cop needs probable cause. Once probable cause is established, the cop needs either exigency (meaning there's no time to get a warrant) OR a warrant. As stated above, motor vehicles, due to their mobility, usually provide their own exigency. Again, as stated above, a cop can also inventory your car prior to impounding it.

CruiserTwelve:wingnut396: I'm sorry, but the police only keep the recordings for 10 days so the officers can refresh their memory when they write their official. The true record anyway is what the officer writes in his report, and that states the defendant said "Look at whatever you want pigs, I don't care!" Now my good jurors, who do believe, a decorated office with 12 years of experience or our accused drug dealer? It pretty clear who has more reason to hide the truth to me...

Cops can't keep a recording for only 10 days. If they record something, it becomes evidence and has to be retained until the court case is resolved. By the way, what would be the point of using the recording when they write their report if they're just going to lie anyway?

If you're that concerned about being unlawfully searched by the cops, maybe you should carry your own recording device at all times. Or maybe wire your car with a hidden recording device.

Actually, that happened to the State Insurance commissioner, Jim Brown, dealing with the FBI. He agreed to an interview with his lawyer present. The FBI agent recorded the conversation and took notes. The only thing they could admit in court was the Agent's report of the interview. An interview in which the agent accused Brown of lying to a federal agent. That was the sole charge that stuck. All the other corruptions stuff was not proved in court. They could not get the recording or the raw notes of the agent. IIRC they had been destroyed as the only real evidence was the agent's official report. Now did Brown actually lie, I don't know. But seems that if the recording were available, it would clear many things up. Shame the Feds don't want to play that game.

And would you really think that you can bring in a recording device to a police interview, especially after you've been arrested. Hell, this entire point is that they already your damn phone.

I can accept a warrantless search to make sure containers are accounted for and the sceen is safe but I cannot accept we need to search this item asap because it can be wiped....... fer fark sake keep it held as evidence and wait for the warrant to open the container.

cefm:The reasonableness of "seizure" is clearly accepted, when it is resulting from arrest. When you are arrested (not detained, questioned, etc. but straight up arrested) the police seize your person and the stuff you have on/with you. The reasonableness of "search" is what we're looking at. If you had a diary in your pocket, or a personal organizer, they could reasonably read through that along with checking your pocket or wallet for receipts, business cards, etc. The reasonableness of looking through the contents of an unlocked mobile phone is under current law pretty much the same. You'd have to specifically call out mobile phones/cameras/ipods etc.as a special type of protected item in a change to your state's laws if you wanted to change that. That leaves us only with the reasonableness of searching through a locked device. Either by demanding that the arrestee unlock it or by using a bypass tool of some kind.

That's my understanding of the current law too.

Experience tells me that most cops don't really care to look at your cell phone unless they expect to find something incriminating. In fact, most cops will try to hand off cell phones to a friend at the time of arrest so they don't have to inventory them at the jail. The times a cop will want to look at your cell phone is if it's involved in the crime you are being arrested for. Example: You're arrested for making threats against your ex-girlfriend by text message. The ex has already shown the cop her phone with the receiving end of the texts. The cop will want to look at your cell phone to confirm they were sent from there. If your phone is locked, they'll usually apply for a warrant and then bypass whatever security measures you have on the phone. And yes, cops know how to bypass pretty much any security your cell phone might have.

1) About 5 years ago: A bunch of kids standing around outside a 7-11. Cops pull up. The kids just stand there with their sodas and snacks and the cops walk over and ask them what they are doing. Kids answer, "just chilling", or some such. One of the cops asks, "Who here has a cell phone?" All but one of the kids raises their hands. "OK," the cop says, "let me see them." "What for?", one kids asks. "JUST GIVE ME YOUR PHONES!", the cop barks. By then, cowardly me was closing my car door and getting ready to drive away.

2) Around August of 2013: I pull up to a stop light with an adjacent bus stop. 4 cops are giving some guy a hard time, 2 or more cops asking questions at the same time, interrupting him before he can fully answer; the guy looks homeless and kind of drunk. There are a bunch of people at the bus stop, a couple of them are obviously talking on their phones. One of the cop yells, "If I see any of y'all with your phones out I'm gonna confiscate all of them as evidence." The two people that were talking immediately pocket their phones and some of the people waiting for the bus start to walk away. I only witnessed this for about a minute before the light turned.

I don't think cops like the fact that so many people are capable of recording their behavior and immediately posting it somewhere.

Event one: I hope the kids asked for a supervisor to respond to the scene, or at least later made a complaint about the cop.

Even two: You have a right to record in public and the cops can't take your phone. Lots of lawsuits have been filed over that practice and have been won by the plaintiffs. Every cop should know about that by now.

I don't think cops like the fact that so many people are capable of recording their behavior and immediately posting it somewhere.

Yep, some cops are like that. It's getting better as older cops retire and newer cops, who are used to everyone having a recording device in their pockets, are coming onboard. I tell my cops to assume that they are always being recorded and to get used to it and behave accordingly.

studebaker hoch:If there's one thing smart phones have shown me is that cops lie all the time.Their accounts never agree with the video record.

That's not necessarily a lie. It's just the nature of human memory to recall things differently than what actually happened. This can be caused by filters or sometimes just bad memory. Lots of studies have been done on that subject and it's rare that people will actually recall an event as it actually happened.

China White Tea:Angela Lansbury's Merkin: UberDave: I think it would be at least a little difficult. They only need reasonable suspicion and if the relevant storage on your device contains nothing but binary zeros or randomized gibberish, it would probably raise some eyebrows (providing someone knows what they are looking at). You would need a "wipe" algorithm that could overwrite incriminating data with older "legitimate" and non-incriminating data (like an old set of texts or pics for example) and do it seamlessly.

TrueCrypt already does something like this for USB drives and other encrypted media. Basically you have two passwords. One is for your personal files, the other is for files you don't mind people seeing. Of course an encryption expert can figure out the container file size is too large for the files being shown, but it works for a quick search by a cop/customs agent.

No. The container size is the container size and is not useful information and, in theory, the data that remains encrypted is indistinguishable from random without the appropriate key, so that would be like saying, "There's only 2 word docs on this 16gb flash drive - WHERE'S THE REST?" when the rest of it is, in fact, empty. Even a TC file set up without the plausible deniability feature is going to have a fixed size and, storage being cheap, most people are going to set it to be substantially larger than they strictly need it to be.

That's not to say that TC's plausible deniability is bulletproof or anything - just that your notion of what would give it away is completely wrong.

Something like this. IIRC, TC''s encryption(single volume or plausible den.) doesn't "list" containers, it doesn't even look for them until a password is entered(in simpleton speak anyhow) as the password is part of the instruction in how to look. Window's doesn't even recognize the hard drive as being formatted.

I use TC myself, not sure how well it would operate on a phone with a smaller processor and less RAM.(ie the decoding on the fly.) Works great on my pc, but it's only 6 months old...

Better: Clearly verbalize your objections. "I do not consent to a search of my phone." If the contact is being recorded, you want it made clear that the search is not consensual.

I'm sorry, but the police only keep the recordings for 10 days so the officers can refresh their memory when they write their official. The true record anyway is what the officer writes in his report, and that states the defendant said "Look at whatever you want pigs, I don't care!" Now my good jurors, who do believe, a decorated office with 12 years of experience or our accused drug dealer? It pretty clear who has more reason to hide the truth to me...

First, I don't know which cops keep a recording for only 10 days. That sounds like something that would depend on the state law and department procedure.

Second, if you ever get a chance, you really do want to serve on a jury. Cops don't even bother to pretend like they're telling the truth on the stand. They sit on the stand and smirk like a 10 year old tattling on his sister to get her in trouble. Nobody takes them seriously.

The thing you have to understand is that 98% of convictions don't happen in a courtroom. In an overwhelming majority of cases, convictions happen in a plea bargain. Whatever the supreme court decides, its only going to apply to the vanishingly small number of defendants who get a trial. The cops could look at a thousand phones and nine hundred and ninety nine times it wont affect a trial, because there wont be one.

Are there any phones out there that can be content encrypted?I'm sure the Ubuntu phone could have done it.Theoretically an Android phone could as well.iOS I doubt is, that's just an access password.Right?

CruiserTwelve:You have a right to record in public and the cops can't take your phone.

Sure, but it doesn't stop them from arresting you and confiscating your phone (and erasing said recording). Even after paying a 170k judgement for this very thing, Boston police continued the same shenanigans.

R.A.Danny:EvilEgg: Can't some enterprising person create a phone that erases itself if you enter the correct code, so you get one for unlock and another for screw you pigs? Thereby solving this problem.

A one touch DOD wipe?

They would probably get you for destroying evidence.

Also pretty sure they don't generally peruse your contacts and history by sight. they plug that baby in and turn on the vacuum. None of that passcode nonsense.

CruiserTwelve:mjbok: Sure, but it doesn't stop them from arresting you and confiscating your phone (and erasing said recording).

No argument from me. As I opined above, I think the police culture is changing. Newer cops seem much more accepting of the fact that they are in the public eye and open to being recorded.

Also, an anti-recording cop is one tenacious false police brutality claim away from becoming a pro-recording cop. Or one instance where a citizen recording them on film happens to catch something they missed that helps get some criminal off the street.

I think cops, like anyone really, focus too much on all the bad things without giving enough consideration to the good things. Once they realize there are significant benefits they should come around. Well, unless they have weighed the pros and cons and don't think full accountability for everyone is worth no longer being able to police "the only way they know how", in which case they're dinosaurs and need to get the fark out of law enforcement as soon as possible.